Understanding Title IX Regulations Changes

NEW TITLE IX REGULATIONS IMPORTANT CHANGES YOU NEED TO KNOW J U L Y 1 4 , 2 0 2 0 B E T H F . M O R R I S : B M O R R I S @ H H H L A W Y E R S . C O M F A Y E E . M A I S O N : F M A I S O N @ H H H L A W Y E R S . C O M H A R B E N , H A R T L E Y A N D H A W K I N S

Definitions, including the conduct that constitutes sexual harassment When and how districts must respond to allegations of sexual harassment; Supportive measures and grievance processes MAIN CHANGES:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or actually receiving Federal financial assistance WHAT DOES TITLE IX SAY?

1) Cannon v University of Chicago (1979), private right of action exists under Title IX 2) Franklin v. Gwinnett County Pub. Sch.(1992), recognizing an implied cause of action for monetary damages under Title IX against education institutions receiving federal funds THE UNITED STATES SUPREME COURT ON TITLE IX 3) Gebser v. Lag Vista Indep. Sch. Dist. (1998), the plaintiff must establish that an official with authority to institute corrective measures (a) had actual notice of the teacher s misconduct and (b) was deliberately indifference in responding to it. 4) Davis v. Monroe County Board of Education (1999), the conduct of the perpetrator was so severe, pervasive and objectively offensive that it denied the victim equal access to educational opportunities or benefits

2001 Guidance 10/2001 Dear Colleague Letter 4/2011 Dear Colleague Letter 4/2013 Dear Colleague Letter 4/2015 Dear Colleague Letter 5/2016 Dear Colleague Letter 9/2017 Dear Colleague Letter OFFICE OF CIVIL RIGHTS: GUIDANCE AND DEAR COLLEAGUE LETTERS

MAY 6, 2020 NEW TITLE IX REGULATIONS EFFECTIVE AUGUST 14, 2020

IMPORTANT TERMS

Notice of sexual harassment or allegations of sexual harassment to a school s Title IX Coordinator or any official of the school who has authority to institute corrective measures, or to any employee of an elementary and secondary school. ACTUAL KNOWLEDGE

SEXUAL HARASSMENT Quid Pro Quo: An employee of the recipient conditioning the provision of aid, benefit, or service of the recipient or an individual s participation in unwelcome sexual conduct Hostile Environment: Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectionably offensive that it effectively denies a person equal access to the recipient s educational program or activity Clery Act/VAWA: Sexual assault example: seduction, incest, indecent exposure

Committed by: Current/former spouse Current/former intimate partner Current/former cohabitation person Person similarly situated as a spouse Any other person DOMESTIC VIOLENCE

Violence committed by a person Who is or has been in a social relationship of a romantic or intimate nature with the victim; and Where the existence of such a relationship shall be determined based on a consideration of the following factors: DATING VIOLENCE The length of the relationship. The type of relationship. The frequency of interaction between the persons involved in the relationship.

Conduct directed at a person that would cause a reasonable person to: STALKING 1. Fear for own safety or others safety OR 2. Suffer substantial emotional distress

An individual who is alleged to be the victim of conduct that could constitute sexual harassment COMPLAINANT Also means parent or guardian of student Any person can report sexual harassment and trigger recipient s obligation to respond Victim, bystander, witness, friend, or any other person

An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment RESPONDENT

THE OBLIGATION TO RESPOND

A SCHOOL IS OBLIGATED TO RESPOND WHEN: 1) The school has actual knowledge of sexual harassment; 2) The act occurred within the school s own education program or activity ; 3) Against a person in the United States. A school must respond meaningfully to every report of sexual harassment.

all of the operators of elementary and secondary school PROGRAM OR ACTIVITY Includes locations, events or circumstances over which the recipient exercised substantial control over both the respondent and context in which the harassment occurs

WHO HAS TO HAVE Title IX Coordinator ACTUAL KNOWLEDGE? Any employee of the school

HAW ARE DISTRICTS SUPPOSED TO RESPOND? Actual Knowledge Formal Complaint

1) Promptly 2) Offer supportive measures to complainant and respondent A DISTRICT MUST RESPOND: 3) Explain process of filing formal complaint

Non-disciplinary, non-punitive individual services designed to restore or preserve equal access to educational program or activity without unreasonably burdening the other party WHAT ARE SUPPORTIVE MEASURES? Without fee or charge i.e. counseling, deadline extensions, modification of class/work schedules, restricting contact between parties, revised seating or assignments, increased monitoring, emergency removals

FOCUS ON THE PROCESS 1) 2) 3) Treat both complainant and respondent equal Evaluate all relevant evidence objectively Title IX Coordinator, investigator, and decision maker are to be free from conflict of interest and trained to be impartial Preserve innocence of respondent Prompt time frames for process Range of remedies and sanctions which may be imposed Standard of proof record preponderance Appeal procedures Privilege (except with waiver) 4) 5) 6) 7) 8) 9)

FOCUS ON DUE PROCESS A presumption of innocence throughout the grievance process; Written notice of allegations against the accused; An equal opportunity for both parties to present and review all the evidence; Opportunity to submit written questions to challenge credibility of both parties

Upon receipt, recipient must provide written notice to the known parties that includes: 1) Notice of grievance process and informal resolution 2) Notice of allegations in sufficient detail and time to allow preparation of response prior to initial interview FORMAL COMPLAINT 3) Identities of known parties, alleged conduct, date and location of conduct, if known 4) Statement that respondent is not responsible for alleged conduct; determination made at conclusion of process 5) Notice that parents may inspect and review evidence 6) Notice that parties may inspect and review evidence 7) Notice of any provision in student code of conduct re making false statement

Cannot require a waiver of right to investigation of complaint; May not require parties to participate in informal resolution; May not offer informal resolution unless complaint is filed; Informal resolution may be offered before determination School district must facilitate the process INFORMAL RESOLUTION Provide parties: 1. Notice that discloses allegations, 2. Requirements for resolution; 3. Any party can withdraw prior 4. Obtain consent from the parties; it must be voluntary 5. Cannot use when employee harassed a student

INVESTIGATION Investigator must be someone other than Title IX Coordinator or decision- maker Burden of gathering evidence and determination of responsibility is on recipient Give all parties same opportunity to present witnesses and evidence Certain evidence is protected unless waiver signed Provide parties with written notice of day, time, location, participants and purpose of each investigation interview with sufficient time for party to prepare Provide complainant and respondent with at least 10 days to review evidence prior to investigative written report, and opportunity to respond Can t restrict parties obligation to discuss allegations or gather and present relevant evidence

DETERMINATION OF RESPONSIBILITY Decision maker can t be Title IX Coordinator or investigator Must issue written determination that includes: Allegations Description of procedural steps taken, making notification to and interview of parties and witnesses Finding of facts Application of code of conduct Statement of and rationale for result as to each allegation Determination of responsibility Discipline sanctions Whether remedies to ?/preserve Equal access to educational program/activity will be provided by recipient to complainant

APPEALS Must offer to both parties for: 1) Determination of responsibility 2) Dismissal as to the following bases: 1) Procedural irregularity that affects the outcome 2) New evidence not reasonably available at time of determination 3) Conflict of interest as part of Title IX Coordinator, Investigator or decision-maker

NEXT STEPS

MAKE DISTRICT AND SCHOOL LEVEL DETERMINATIONS Who will have what role? How can you limit possible conflict or bias in the roles of coordinators, decision makers, and investigators? Who will lead the appeals process? What standard of proof will you use?

WHO NEEDS TRAINING? Title IX Coordinator Investigator Decision Maker Any person who facilitates informal resolution Do you want to train all employees to recognize sexual harassment?

UPDATE POLICIES AND PROCEDURES Changes to policies JCAD - Racial harassment JAA - Equal education opportunities GAEC - Racial harassment GAEB - Harassment GAAA - Equal opportunity employment Determine where and how records will be kept (must keep records for minimum of seven years) Training materials used must be available online

HAVE ADDITIONAL QUESTIONS? Contact Beth F. Morris at bmorris@hhhlawyers.com or Faye E. Maison at fmaison@hhhlawyers.com